Quintanilla

In this case, a defendant challenges instructions permitting the jury to consider charged domestic violence offenses as evidence of criminal propensity in connection with other domestic violence charges joined for trial. In the published part of our opinion, we hold such instructions are improper, but amounted to harmless error in this case.

After a jury trial, Nicolas Quintanilla was convicted of false imprisonment, inflicting injury on a cohabitant, forced sexual penetration, witness intimidation, assault with force likely to cause great bodily injury, criminal threats, and rape. The court sentenced him to a term of 19 years four months. On appeal, he contends: (1) the witness intimidation conviction must be reversed because he was charged with and convicted of attempting to dissuade a witness from testifying (Pen. Code, § 136.1, subd. (a)), an offense for which there was no supporting evidence and on which the jury was not instructed (instead, it was instructed on the crime of attempting to dissuade a witness from making a police report under Pen. Code § 136.1, subd. (b)); (2) the evidence did not establish the requisite specific intent for forced sexual penetration;…

I concur in the disposition of this appeal, and agree with the reasoning of the majority as to all issues except the impropriety of the trial court’s modified propensity instruction. While the majority concludes that giving modified CALJIC No. 2.50.02 was a harmless error, I do not believe that it was an error at all.

As the majority correctly points out, evidence of a defendant’s criminal propensity is ordinarily inadmissible. (Evid. Code, § 1101.) 1 However, as the majority also recognizes, the Legislature has created exceptions to this rule in cases involving sexual offenses (§ 1108) and domestic violence (§ 1109). Our Supreme Court has held that section 1108 satisfies the requirements of due process. (People v. Falsetto (1999) 21 Cal.4th 903, 922 [ 89 Cal.Rptr.2d 847 , 986 P.2d 182 ].) It has also ruled that CALJIC No. 2.50.01, which explains the application of section 1108, is a correct statement of the law. (People v. Reliford (2003) 29 Cal.4th 1007, 1012 [ 130 Cal.Rptr.2d 254 , 62 P.3d 601 ].) Following these decisions, the constitutionality of section 1109 has been upheld (People v. Price (2004) 120 Cal.App.4th 224, 240 [ 15 Cal.Rptr.3d 229 ]; People v. Jennings (2000) 81…

Certified for Partial Publication. [*]

In this case, a defendant challenges instructions permitting the jury to consider charged domestic violence offenses as evidence of criminal propensity in connection with other domestic violence charges joined for trial. In the published part of our opinion, we hold such instructions are improper, but amounted to harmless error in this case.

After a jury trial, Nicolas Quintanilla was convicted of false imprisonment, inflicting injury on a co-habitant, forced sexual penetration, witness intimidation, assault with force likely to cause great bodily injury, criminal threats, and rape. The court sentenced him to a term of 19 years and 4 months. On appeal, he contends: (1) the witness intimidation conviction must be reversed because he was charged with and convicted of attempting to dissuade a witness from testifying (Pen.Code, § 136.1, subd. (a)), an offense for which there was no supporting evidence and on which the jury was not instructed (instead, it was instructed on the crime of attempting to dissuade a witness from making a police report under Penal Code section 136.1, subdivision (b)); (2) the evidence did not establish…